Web Exclusives:Features
a PAW web exclusive column

April 4 , 2001:
The laws of war and child soldiers
Professor Jeffrey Herbst, who specializes in sub-Sahara Africa, finds laws proliferate, enforcement lags, and paradoxes abound

By Fran Hulette

Jeffrey Herbst, chair of the Princeton's politics department, recently completed a paper titled "International Laws of War and the African Child: Norms, Compliance and Sovereignty." His paper was among several written for the Center for the Study of International Organization. The Center, established in 1998, is a joint venture of the Woodrow Wilson School and New York University's school of law. With offices at NYU, it is an international focal point for policy research on ways of renovating existing regional and global institutions, and of developing fresh means of cooperation among governments and civil society. The Center hopes to publish a collection of papers on the relationship between the creation of international norms and implementation in the near future.

Professor Herbst discussed his research and the tragedy of child soldiers with PAW.

How did you become involved in researching child soldiers?

I was asked by the Center for the Study of International Organization to contribute a paper near my own set of research interests in sub-Sahara Africa. I have long been interested in what's called the laws of war. This is paradoxical in some ways because war seems to be the most unregulated thing, but in fact there are lots of laws of war - how you should treat enemy prisoners, how you should treat noncombatants. Especially interesting is the expansion of the laws of war in recent years.

The basic problem identified by the study's principal investigators - my colleague Michael Doyle here at Princeton and Ed Luck at NYU - is an increasing number of international conventions, treaties, meetings, and protocols on all types of issues, but lagging enforcement of those norms. The question is: Should the laws or norms get so far ahead of enforcement that people become cynical about things going on at the international level and, therefore, regulation should essentially slow down? Or is this just the nature of leadership, that people get ahead of where reality is and then try to pull reality in the direction they are trying to go.

What have you learned in your research?

In Africa, unfortunately, the number of civil wars have been significant and one of the phenomena we've seen in the 1980s and 1990s is the appearance of the child soldier, generally defined as combatants under 15. The child soldier is one of those aspects of war the international community is trying to regulate, first with the Convention on the Rights of the Child in 1990, which was the most widely adopted human rights instrument in world history, and now with a new international protocol dealing specifically with child soldiers.

Enforcement of laws is certainly lagging well behind. It's very hard to see that these international conventions and protocols, which the African countries are usually very quick to sign, have any effect on the ground. Here are all these conventions and laws being passed in New York and Geneva while the problem on the ground is, if anything, getting worse.

In fact, these rules represent some of the real paradoxes of international law today. African countries want their opponents' practices to be regulated by international law. They want the law to say, for instance, these guerrillas we're fighting can't use child soldiers. But they don't want guerrilla movements to have any kind of international legal personality. They don't want them recognized in any way by the outside world because the governments' official position is invariably that this is not a political opposition, these are criminals, thugs, etc.

So the problem now becomes how to get the guerrillas regulated without acknowledging them. This is one of the central paradoxes regarding the laws of child soldiers. The new international protocol on child soldiers, promulgated in 2000, says in part that this law applies to guerrilla armies, but the application of the law to guerrilla armies bestows no recognition on them. This, of course, is ridiculous.

Some governments too are guilty of using child soldiers, especially governments that were themselves former rebel movements. The current government of the Democratic Republic of the Congo, formerly known as Zaire, was a guerrilla movement that employed a significant number of children in its fight against the old Mobutu government, and some of those children remain with the army. Probably more often than not, more child soldiers are in guerrilla movements. But governments are not innocent.

Because there are no fines, because they can't send people to jail, the international community tries to rely upon moral suasion to uphold the laws. Nongovernmental organizations (NGOs) - increasingly prevalent in the international human rights field - face the dilemma of having to make new law with existing governments, which are themselves part of the problem. If you accept the kind of legitimacy of international law, whom do you deal with? These NGOs have had to get in the same ring with people they don't view as necessarily legitimate or like, but they're drawn into these things because only existing governments can make new international law.

Another point my paper spends a fair bit of time dealing with, is how nongovernmental organizations want to comment on the conduct of warfare, but don't want to pick a side to win. Even when the international community has decided that one side is much worse than the other - for instance, there's a consensus that the Ugandan government is much better in terms of human rights practices than the rebel groups it's fighting - no one says "we should help the Ugandan government win." Even when NGOs are facing an obviously illegitimate, quite brutal rebel force, the language of victory, which you would think is an essential part of any discussion of military conflict, is missing. Wars have become so much about human rights processes that people don't have the confidence to talk in terms of military defeat or victory anymore.

The number of African civil wars is neither clearly higher nor lower than in the past. What's changed is that fighting now is less between regular armies and increasingly between government forces and rebel groups. These groups are kind of fused rebel movements/criminal gangs that often coerce people into joining them, and of course, children are the easiest people to coerce.

How do you conduct research and get data?

My research has mainly been about the international legal and political processes. All of the data on child soldiers are rough guesses. After some of the wars, such as the Liberian civil war, people did some on-the-ground surveys of combatants. But no one can do any research while these wars are going on, so all the estimates are well-informed guesses essentially.

Are there statistics on death and injury rates among children?

There are and they're all over the place. One statistic I think stands out is that the percentage of civilians among total casualties is going up and up. If you look at a classic war like World War I, the overwhelming number of deaths were among combatants - soldiers killing soldiers. Now it's estimated in these African wars that 50 to 60, maybe 70 percent of deaths are among civilians. Civilians are caught in between armies of soldiers who are not well paid or well fed, and therefore, are extremely vulnerable to coercion for food, for resources, for all kinds of things.

The "civilianization" - for lack of another word - of casualties is one of the most striking trends of modern warfare. It means that women and children especially, who make up the majority of noncombatants, are ever greater at risk. This is a very modern phenomenon and particularly true in Africa. It's quite striking that the violence in Kosovo just pales in comparison to what's going on a half dozen African countries.

Are child soldiers a problem of economics, AIDS, or what?

Child soldiers are connected to the AIDS epidemic in part because these children are sometimes AIDS orphans, who have no parents or older adults to look after them. They work for and live with armies because that's the only group providing for them. The orphan crisis in Africa is very much related to the child soldier crisis and also a reflection of even more fundamental trends in social disintegration. In many African societies, age is profoundly respected and elderly people the most respected. For children to now have the ultimate weapons of violence is a sign that these societies have really undergone quite a profound trauma, because it's suddenly the youngest elements of society who are the most powerful.

You see a lot of child soldiers in West Africa, however, and there's not a lot of AIDS in West Africa. AIDS is clearly part of the equation but not the whole thing. Economic and social disintegration are the other reasons for the child soldier problem.

Have child soldiers surfaced throughout history?

There were not nearly as many child soldiers 30 years ago, even in Africa. Today child soldiers are most prevalent in Sierra Leone, Liberia, West Africa, the Democratic Republic of the Congo, Angola and Uganda to a lesser extent. Sudan has a very extensive problem.

Not all African countries have child soldiers. Some countries are either at peace or have relatively well-organized militaries. Children are not good fighters; they're terrible fighters. No self-respecting military would use children. It's a sign of desperation or breakdown of society, and of the military itself. Few people are more repulsed by the notion of child soldiers than the regular military in most African countries.

What can the U.S. do to address the problem of child soldiers?

It's a larger problem of how you bring peace to these countries. You can't address the child soldiers issue independent of these larger questions. That's one of the reasons why conventions and legal protocols have been of such limited use. The fundamental problem is not that people happen to be using child soldiers, the fundamental problem is that these countries have been at war so long all their basic institutions and legal practices are grinding down.

You can't really address the child soldiers issue until you bring peace to these countries. Then you face the profoundly difficult question of integrating children back into society because they have been traumatized. At the same time they've been given tremendous power and to get them to be functioning children and eventually functioning adults - they've missed critical school years while in the bush - is an extraordinarily difficult task.

Fran Hulette is an occasional contributor to PAW. You can email her at "Fran Hulette"